N.Y. Times v. CIA, No. 18-2112, 2020 WL 3863087 (2d Cir. July 9, 2020) (Walker, J.)

N.Y. Times v. CIA, No. 18-2112, 2020 WL 3863087 (2d Cir. July 9, 2020) (Walker, J.)

Re:  Request for records related to an alleged covert CIA operation to arm and train Syrian rebels

Disposition:  Affirming district court's grant of government's motion for summary judgment

• Exemptions 1 & 3, Glomar:  The Court of Appeals for the Second Circuit "find[s] that both [Exemption 1 and Exemption 3 in conjunction with Section 102(A)(i)(1) of the National Security Act of 1947, as amended by 50 U.S.C. § 3024(i)(1)] apply because any substantive response could reveal, as [the government] attested, 'whether or not the United States exercised extraordinary legal authorities to covertly influence the political, economic, and/or military conditions in Syria' or 'the CIA's connection to such a program, if one existed.'''  "At a minimum, a substantive response to whether the CIA had any documents would reveal that the agency had an interest – or lack thereof – that could expose agency priorities, strategies, and areas of operational interest."  The court relates that "[the requester] argues that the CIA's Glomar response, which refuses to confirm nor deny the existence of records related to the covert program at issue, is inappropriate because the President's statements, both in the tweet on July 24, 2017 and in the Wall Street Journal interview the following day, officially acknowledged the existence of the covert program and, therefore, the CIA waived its right to assert a FOIA exemption."  The court finds that "'a general acknowledgement of the existence of a program alone does not wholesale waive an agency's ability to invoke Glomar where certain aspects of the program remain undisclosed.'"  "Even assuming arguendo that President Trump's statements revealed the general existence of the alleged covert program, a Glomar response is still appropriate if none of the relevant statements officially acknowledged the existence or nonexistence of specific records."  "The President never specified that there was any program – let alone one led by the CIA – designed to arm and train Syrian rebels."  The court notes that "[plaintiff] is asking us to draw inferences that the President acknowledged the existence of a covert CIA program."  "For instance, regarding the President's statement to the Wall Street Journal that the program was 'not something that [he] was involved in' and that the decision was 'made by people, not me,' it remains unclear what 'decision,' made by unidentified 'people,' President Trump was not 'involved in.'"  "While the Times argues that, at a minimum, it 'plainly' must be a decision to end a covert CIA program, these statements, even packaged together, do not remove all doubt as to their meaning."  "[The court] agree[s] with [plaintiff] that one reasonable way to interpret President Trump's tweet regarding 'massive, dangerous, and wasteful payments to Syrian rebels fighting Assad' is with respect to payments tied to the alleged covert program, as referenced in the antecedent Washington Post article."  "As the district court suggested, however, these statements 'could just as easily be the President relaying what he believed to be the Post's "fabricated" characterizations.'"  "Further, neither the tweet nor the Wall Street Journal interview mentions the CIA and, therefore, anything other than a Glomar response would likely reveal or refute that the CIA had an intelligence interest in the program, evidenced by a cache of records."  "Finally, [plaintiff] contends that U.S. Special Operations Commander General Thomas's statements independently undermine the plausibility of the CIA's justifications for its Glomar response."  The court holds that "it is undisputed that General Thomas, a high-ranking officer in the Department of Defense, was not authorized to speak for the CIA, and courts will 'not infer official disclosure of information classified by the CIA from . . . statements made by a person not authorized to speak for the [CIA].'"  "To be sure, there are times when other agency disclosures can be 'relevant evidence' regarding the 'sufficiency of the justifications set forth by the CIA in support of its Glomar response.'"  "But that is not the case here."  The court holds that "[i]t is still 'logical or plausible' that disclosing the existence or nonexistence of an intelligence interest in such a program would reveal something not already officially acknowledged and thereby harm national security interests."
  
  Additionally, "mindful of the requisite deference courts traditionally owe to the executive in the area of classification, [the court] decline[s] to find that President Trump's statements inadvertently declassified the existence of the alleged covert program."  The court relates that "[t]o make its declassification claim, [plaintiff] essentially recasts its 'official acknowledgement' claim as one of 'inferred declassification.'"  "To prevail in any claim of declassification, inferred or otherwise, [plaintiff] must show:  first, that President Trump's statements are sufficiently specific; and second, that such statements subsequently triggered actual declassification."  The court holds that "[t]he first is easily disposed of because we have already found that the statements are insufficiently specific to quell any 'lingering doubts' about what they reference."  Regarding the second, the court finds that "[b]ecause declassification, even by the President, must follow established procedures, that argument fails."  "Finally, as the district court recognized, the suggestion that courts can declassify information raises separation of powers concerns."
  
  Chief Judge Katzmann wrote separately in dissent that "[he] believe[s] that President Trump's public statements cannot be logically interpreted as anything other than an acknowledgement of the existence of 'payments to Syrian rebels.'"  "The justifications the CIA provides for issuing a Glomar response are neither 'logical [n]or plausible' given the President's public acknowledgement of the program the CIA purportedly seeks to keep secret."  Chief Judge Katzmann states that "[the court has] never suggested that the ability to read any doubt whatsoever, no matter how implausible or how belied by context, into a statement calls an official acknowledgment into question."  "To the degree that the majority is suggesting that some critical mass of official statements is required to find official acknowledgment, [Chief Judge Katzmann] disagree[s]."  "[Chief Judge Katzmann] see[s] no support in case law or in logic for the position that more than one official acknowledgment is required, or that a public, official, documented statement directly from the President is insufficient to constitute an official acknowledgment."  "Rather, even a single statement by the President – who is, after all, the official charged with the functioning of the entire Executive Branch – may suffice, without the need for external corroboration or support."  "To hold otherwise would fail to accord the proper weight and respect owed to presidential statements."